Exam Flashcards
why were constitutional courts created?
to check the validity of legislation from parliament.
in europe, what does the constitution have a higher priority than?
legislation/statutes
what must legislation comply with?
the constitution.
what is the only court which can declare a piece of legislation unconstitutional?
the constitutional court.
why did Europe introduce the constitutional courts?
because they wanted this court to be the only body which could challenge the constitutionality of european legislation. they did not want this decision to be in the hands of ordinary judges.
which countries do not have a written constitution?
UK and New Zealand. The USA has a constitution, but no constitutional court (instead it has the Supreme Court (same with the UK)).
what are the advantages of constitutional courts?
*Legislative review is a major task that constitutional courts perform.
*Abstract review- Case by case comparison.
*It acts as a guardian of constitutional rights
*Protection of minorities
*They provide a peaceful and legal means for resolving conflicts between different branches of government
*They uphold democratic principles
*Judicial review- They have the power to review laws that violate the constitution
*They serve as a check on the powers of the legislative and executive branches, preventing any abuse of power.
*The constitutionality of a statute cannot be left in the hands of ordinary judges.
what are the disadvantages of constitutional courts?
**The constitutional court only checks statutes which have been enacted by Parliament. However, norms are also enacted by the Executive branch which are controversial. In this case, the ordinary courts decide the constitutionality of the executive’s norms, not the CC. But, if a norm is so controversial, then it should go to the constitutional court, but it can’t because it has not been enacted by parliament. Example: The banning of the crucifix in Italy was decided by the executive so it had to go to the ordinary courts.
**The CC will tell us whether or not a statute is constitutional or not, but the interpretation of the statute is left up to the ordinary courts.
Who has standing (who can go the constitutional court)?
**Individuals- however it can take a while.
**public institutions
what does previous control mean?
the law is checked by the courts before it enters into force.
who are abstract review challenges brought by in Europe?
public institutions.
where can any citizen bring abstract review challenges to the court?
In Latin America (specifically Columbia). The individual does not have to have an interest in the case to have standing.
what did Alexander Bickel say the supreme court should act like?
they should exercise the passive virtues.
the court acts in passive virtues when: 1) the system is decentralised, meaning they only speak at the very end; 2) the court has discretionary jursidiction (can decide which case they want to take. this is not available in constitutional courts); and 3) statutory interpretation
how can the constitutional court escape from constitutional issues?
the court can send the case to the Court of Justice of the European Union. The CC can say that the case is a EU issue, not a constitutional issue.
what is the triangle system?
(at the top): constitution which binds parliament.
(middle) statutes enacted by parliament.
(bottom) regulations.
- this does not exist in the UK, but does in the rest of Europe. This is because in the UK, the legislation enacted by parliament is sovereign and is the highest law in the system.
how is the Council of Europe different from the European Union?
*The Council of Europe has a larger system than the EU.
*In the EU, there is the principle of direct effect which means the EU law must be applied in national courts.
who are the members of the EU?
all members of the council are members of the EU, except for the UK.
what is the aim of the Council of Europe?
to create peace and stability in Europe and protect human rights and democracy.
what was established in 1950?
the European Convention on Human Rights. The states are free to abolish these protocols if they wish to.
what must a state do if they wish to be a member of the Council of Europe?
they must have ratified the European Convention. the obligations they assume from ratifying is that they must respect these rights and they are subject to the jurisdiction of the European Court of Human Rights.
what do member states have standing to do in the Council of Europe?
to sue another member state (e.g., Ireland v UK- but this is not very common).
who else has standing in the Council of Europe?
individuals who have been victims of abuse of rights have standing to sue a state. But, they must have exhausted all remedies before they go to the court. You don’t need to be a citizen of the state you are suing. The normal remedy for victim vs state is damages.
what can each member state decide with regard the European Convention?
they can decide what to apply from the European Convention in their domestic system. they have a lot of flexibility.
what can a member state do if a national law is in conflict with the European Convention?
they can set aside the national law.
what is the only court that can set aside statutes that are in conflict with the European Convention?
the constitutional court.
what did the case of SAS v France involve?
a constitutional challenge in the French constitutional court regarding the right to manifest religion and private life (art 9 and 8). The French Parliament passed a statute which prohibited clothing which covered the face (notice that it doesn’t explicitly ban the burqa it just bans anything which covers the face, which means the burqa).
which section of the statute in SAS v France banned clothing covering the face?
para 28 - prohibition of clothing which covers your face.
what is Section 2 of the statute in SAS v France about?
the exceptions to wearing clothing which covers the face. these exceptions are justified for health, occupational, sport, festivities or traditional events
what did the French court say in Section 5 in SAS v France?
They said that the statute is constitutional except for religious freedom. The court is saying that there should be exceptions for those who wish to cover their face in places of worship.
what error did SAS make when the French statute was passed and she thought her rights were at stake?
she went straight to the European Court of Human Rights. However, she didn’t go to the national courts of France first so she did not exhaust the domestic remedies first.
what are the 2 ways to go to the constitutional court?
1) constitutional question- a judge asks a question from a case to the court;
2) constitutional challenge- you go directly to the court regarding a statute.
which article of the ECHR can be extended in SAS v France? and how?
Article 8 (right to private life).
The argument is that art 8 is not about your freedom to choose anything in your life, that is liberty not private life. example: being unable to ride my bike in the park is not a violation of art 8 as it is not fundamental to ride your bike. instead, it is against your liberty, and your private life is not at stake.
Any law that tells you how to present yourself in public is a violation of private life.
SAS concerned the right to private life.
